Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into by and
between Xxxxxx Marriott ("Employee") and USA Networks, Inc., a Delaware
company ("USA" or the "Company"), and is effective March 1, 2002 (the
"Effective Date").
WHEREAS, the Company desires to establish its right to the
services of Employee, in the capacity described below, on the terms and
conditions hereinafter set forth, and Employee is willing to accept such
employment on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, Employee and the Company have agreed and do hereby
agree as follows:
1A. EMPLOYMENT. The Company agrees to employ Employee as Senior Vice
President, Strategic Planning and Employee accepts and agrees to such
employment. During Employee's employment with the Company, Employee shall do
and perform all services and acts necessary or advisable to fulfill the
duties and responsibilities as are commensurate and consistent with
Employee's position and shall render such services on the terms set forth
herein. During Employee's employment with the Company, Employee shall report
directly to the Vice Chairman or such person(s) as from time to time may be
designated by the Company (hereinafter referred to as the "Reporting
Officer"). Employee shall have such powers and duties with respect to the
Company as may reasonably be assigned to Employee by the Reporting Officer,
to the extent consistent with Employee's position and status. Employee agrees
to devote all of Employee's working time, attention and efforts to the
Company and to perform the duties of Employee's position in accordance with
the Company's policies as in effect from time to time. Employee's principal
place of employment shall be the Company's offices located in New York, New
York.
2A. TERM OF AGREEMENT. The term ("Term") of this Agreement shall commence on
the Effective Date and shall continue for a period of three years, unless
sooner terminated in accordance with the provisions of Section 1 of the
Standard Terms and Conditions attached hereto.
3A. COMPENSATION.
(a) BASE SALARY. During the Term, the Company shall pay Employee an
annual base salary of $400,000 (the "Base Salary"), payable in equal biweekly
installments or in accordance with the Company's payroll practice as in
effect from time to time. For all purposes under this Agreement, the term
"Base Salary" shall refer to Base Salary as in effect from time to time.
(b) SIGNING AND DISCRETIONARY BONUS. Employee shall receive a signing
bonus of $100,000 on the Effective Date. During the Term, Employee shall be
eligible to receive discretionary annual bonuses.
(c) STOCK OPTION. In consideration of Employee's entering into this
Agreement and as an inducement to join the Company, Employee shall be granted
under USA Networks, Inc.'s 2000 Stock and Annual Incentive Plan (the "Plan")
a non-qualified stock option (the "Option") to purchase 150,000 shares of USA
Networks, Inc. ("USAi") common stock, par value $.0l per share (the "Common
Stock"), subject to the approval of the Compensation Committee of the Board
of Directors of USAi. The date of grant of the Option shall be the later of
(x) the Effective Date, (y) the date on which the grant is approved by such
Compensation Committee, and (z) the date on which the Employee commences
employment with the Company. The exercise price of the Option shall equal the
last reported sales price of the Common Stock in the over-the-counter market
(or such other market on which the Common stock is then traded) on the date
preceding the date of grant. Such Option shall vest and become exercisable in
four equal installments on each of the first, second, third and fourth
anniversaries of the Effective Date, provided that the Option shall become
100% vested and exercisable upon a Change in Control (as such term is defined
in the Plan). The Option shall expire upon the earlier to occur of (i) ten
years from the date of grant (the "Option Term") or (ii) except as otherwise
provided in the Option award agreement, 90 days following the termination of
Employee's employment with the Company for any reason. Other than
acceleration of the Option following a Change in Control, the Option shall
not otherwise become vested and exercisable as a result of the termination or
non-renewal of this Agreement (or the termination of Employee's employment
with the Company) for any reason.
BENEFITS. From the Effective Date through the date of termination of
Employee's employment with the Company for any reason, Employee shall be
entitled to participate in any welfare, health and life insurance and pension
benefit and incentive programs as may be adopted from time to time by the
Company on the same basis as that provided to similarly situated employees of
the Company. Without limiting the generality of the foregoing, Employee shall
be entitled to the following benefits:
(i) REIMBURSEMENT FOR BUSINESS EXPENSES. During the Term, the
Company shall reimburse Employee for all reasonable and necessary expenses
incurred by Employee in performing Employee's duties for the Company, on
the same basis as similarly situated employees and in accordance with the
Company's policies as in effect from time to time.
(ii) VACATION. During the Term, Employee shall be entitled to four
weeks of paid vacation per year, in accordance with the plans, policies,
programs and practices of the Company applicable to similarly situated
employees of the Company generally.
(iii) RELOCATION. The Company shall reimburse Employee for
reasonable relocation expenses as approved by the Company.
4A. NOTICES. All notices and other communications under this Agreement shall
be in writing and shall be given by first-class mail, certified or registered
with return receipt requested or hand delivery acknowledged in writing by the
recipient personally, and shall be deemed to have been duly given three days
after mailing or immediately upon duly acknowledged hand delivery to the
respective persons named below:
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If to the Company: USA Networks, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
If to Employee: 00 Xxxxxx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
Either party may change such party's address for notices by notice duly given
pursuant hereto.
5A. GOVERNING LAW; JURISDICTION. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under
and in accordance with the internal laws of the State of New York without
reference to the principles of conflicts of laws. Any and all disputes
between the parties which may arise pursuant to this Agreement will be heard
and determined before an appropriate federal court in New York, or, if not
maintainable therein, then in an appropriate New York state court. The
parties acknowledge that such courts have jurisdiction to interpret and
enforce the provisions of this Agreement, and the parties consent to, and
waive any and all objections that they may have as to, personal jurisdiction
and/or venue in such courts.
6A. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument. Employee expressly understands
and acknowledges that the Standard Terms and Conditions attached hereto are
incorporated herein by reference, deemed a part of this Agreement and are
binding and enforceable provisions of this Agreement. References to "this
Agreement" or the use of the term "hereof" shall refer to this Agreement and
the Standard Terms and Conditions attached hereto, taken as a whole.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and delivered by its duly authorized officer and Employee has
executed and delivered this Agreement on March 1, 2002.
USA NETWORKS, INC.
_________________________________________
By:
Title:
XXXXXX MARRIOTT
_________________________________________
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STANDARD TERMS AND CONDITIONS
1. TERMINATION OF EMPLOYEE'S EMPLOYMENT.
(a) DEATH. In the event Employee's employment hereunder is terminated
by reason of Employee's death, the Company shall pay Employee's designated
beneficiary or beneficiaries, within 30 days of Employee's death in a lump
sum in cash, Employee's Base Salary through the end of the month in which
death occurs and any Accrued Obligations (as defined in paragraph 1(f) below).
(b) DISABILITY. If, as a result of Employee's incapacity due to
physical or mental illness ("Disability"), Employee shall have been absent
from the full-time performance of Employee's duties with the Company for a
period of four consecutive months and, within 30 days after written notice is
provided to Employee by the Company (in accordance with Section 6 hereof),
Employee shall not have returned to the full-time performance of Employee's
duties, Employee's employment under this Agreement may be terminated by the
Company for Disability. During any period prior to such termination during
which Employee is absent from the full-time performance of Employee's duties
with the Company due to Disability, the Company shall continue to pay
Employee's Base Salary at the rate in effect at the commencement of such
period of Disability, offset by any amounts payable to Employee under any
disability insurance plan or policy provided by the Company. Upon termination
of Employee's employment due to Disability, the Company shall pay Employee
within 30 days of such termination (i) Employee's Base Salary through the end
of the month in which termination occurs in a lump sum in cash, offset by any
amounts payable to Employee under any disability insurance plan or policy
provided by the Company; and (ii) any Accrued Obligations (as defined in
paragraph 1(f) below).
(c) TERMINATION FOR CAUSE. The Company may terminate Employee's
employment under this Agreement for Cause at any time prior to the expiration
of the Term. As used herein, "Cause" shall mean: (i) the plea of guilty or
nolo contendere to, or conviction for, the commission of a felony offense by
Employee; PROVIDED, HOWEVER, that after indictment, the Company may suspend
Employee from the rendition of services, but without limiting or modifying in
any other way the Company's obligations under this Agreement; (ii) a material
breach by Employee of a fiduciary duty owed to the Company; (iii) a material
breach by Employee of any of the covenants made by Employee in Section 2
hereof; or (iv) the willful or gross neglect by Employee of the material
duties required by this Agreement. In the event of Employee's termination for
Cause, this Agreement shall terminate without further obligation by the
Company, except for the payment of any Accrued Obligations (as defined in
paragraph 1(f) below).
(d) TERMINATION BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR
CAUSE. If Employee's employment is terminated by the Company for any reason
other than Employee's death or Disability or for Cause, then (i) the Company
shall pay Employee the Base Salary through the end of the Term over the
course of the then remaining
Term; and (ii) the Company shall pay Employee within 30 days of the date of
such termination in a lump sum in cash any Accrued Obligations (as defined in
paragraph 1(f) below).
(e) MITIGATION; OFFSET. In the event of termination of Employee's
employment prior to the end of the Term, Employee shall use reasonable best
efforts to seek other employment and to take other reasonable actions to
mitigate the amounts payable under Section 1 hereof. If Employee obtains
other employment during the Term, the amount of any payment or benefit
provided for under Section 1 hereof which has been paid to Employee shall be
refunded to the Company by Employee in an amount equal to any compensation
earned by Employee as a result of employment with or services provided to
another employer after the date of Employee's termination of employment and
prior to the otherwise applicable expiration of the Term, and all future
amounts payable by the Company to Employee during the remainder of the Term
shall be offset by the amount earned by Employee from another employer. For
purposes of this Section 1(e), Employee shall have an obligation to inform
the Company regarding Employee's employment status following termination and
during the period encompassing the Term.
(f) ACCRUED OBLIGATIONS. As used in this Agreement, "Accrued
Obligations" shall mean the sum of (i) any portion of Employee's Base Salary
through the date of death or termination of employment for any reason, as the
case may be, which has not yet been paid; and (ii) any compensation
previously earned but deferred by Employee (together with any interest or
earnings thereon) that has not yet been paid.
2. CONFIDENTIAL INFORMATION; NON-SOLICITATION; AND PROPRIETARY RIGHTS.
(a) CONFIDENTIALITY. Employee acknowledges that while employed by the
Company Employee will occupy a position of trust and confidence. Employee
shall not, except as may be required to perform Employee's duties hereunder
or as required by applicable law, without limitation in time or until such
information shall have become public other than by Employee's unauthorized
disclosure, disclose to others or use, whether directly or indirectly, any
Confidential Information regarding the Company or any of its subsidiaries or
affiliates. "Confidential Information" shall mean information about the
Company or any of its subsidiaries or affiliates, and their clients and
customers that is not disclosed by the Company or any of its subsidiaries or
affiliates for financial reporting purposes and that was learned by Employee
in the course of employment by the Company or any of its subsidiaries or
affiliates, including (without limitation) any proprietary knowledge, trade
secrets, data, formulae, information and client and customer lists and all
papers, resumes, and records (including computer records) of the documents
containing such Confidential Information. Employee acknowledges that such
Confidential Information is specialized, unique in nature and of great value
to the Company and its subsidiaries or affiliates, and that such information
gives the Company and its subsidiaries or affiliates a competitive advantage.
Employee agrees to deliver or return to the Company, at the Company's request
at any time or upon termination or expiration of Employee's employment or as
soon thereafter as possible, all documents, computer tapes and disks,
records, lists, data, drawings, prints, notes and written information (and
all copies thereof) furnished by the Company and its subsidiaries or
affiliates or prepared by Employee in the course of Employee's employment by
the Company and its subsidiaries or affiliates. As used in this Agreement,
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"subsidiaries" and "affiliates" shall mean any company controlled by,
controlling or under common control with the Company.
(b) NON-SOLICITATION OF EMPLOYEES. Employee recognizes that he will
possess confidential information about other employees of the Company and its
subsidiaries or affiliates relating to their education, experience, skills,
abilities, compensation and benefits, and inter-personal relationships with
suppliers to and customers of the Company and its subsidiaries or affiliates.
Employee recognizes that the information he will possess about these other
employees is not generally known, is of substantial value to the Company and
its subsidiaries or affiliates in developing their respective businesses and
in securing and retaining customers, and will be acquired by Employee because
of Employee's business position with the Company. Employee agrees that,
during the Term (and for a period of 24 months beyond the expiration of the
Term), Employee will not, directly or indirectly, solicit or recruit any
employee of the Company or any of its subsidiaries or affiliates for the
purpose of being employed by Employee or by any business, individual,
partnership, firm, corporation or other entity on whose behalf Employee is
acting as an agent, representative or employee and that Employee will not
convey any such confidential information or trade secrets about other
employees of the Company or any of its subsidiaries or affiliates to any
other person except within the scope of Employee's duties hereunder.
(c) PROPRIETARY RIGHTS; ASSIGNMENT. All Employee Developments shall be
made for hire by the Employee for the Company or any of its subsidiaries or
affiliates. "Employee Developments" means any idea, discovery, invention,
design, method, technique, improvement, enhancement, development, computer
program, machine, algorithm or other work or authorship that (i) relates to
the business or operations of the Company or any of its subsidiaries or
affiliates, or (ii) results from or is suggested by any undertaking assigned
to the Employee or work performed by the Employee for or on behalf of the
Company or any of its subsidiaries or affiliates, whether created alone or
with others, during or after working hours. All Confidential Information and
all Employee Developments shall remain the sole property of the Company or
any of its subsidiaries or affiliates. The Employee shall acquire no
proprietary interest in any Confidential Information or Employee Developments
developed or acquired during the Term. To the extent the Employee may, by
operation of law or otherwise, acquire any right, title or interest in or to
any Confidential Information or Employee Development, the Employee hereby
assigns to the Company all such proprietary rights. The Employee shall, both
during and after the Term, upon the Company's request, promptly execute and
deliver to the Company all such assignments, certificates and instruments,
and shall promptly perform such other acts, as the Company may from time to
time in its discretion deem necessary or desirable to evidence, establish,
maintain, perfect, enforce or defend the Company's rights in Confidential
Information and Employee Developments.
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(d) COMPLIANCE WITH POLICIES AND PROCEDURES. During the Term, Employee
shall adhere to the policies and standards of professionalism set forth in
the Company's Policies and Procedures as they may exist from time to time.
(e) REMEDIES FOR BREACH. Employee expressly agrees and understands that
Employee will notify the Company in writing of any alleged breach of this
Agreement by the Company, and the Company will have 30 days from receipt of
Employee's notice to cure any such breach.
Employee expressly agrees and understands that the remedy at law
for any breach by Employee of this Section 2 will be inadequate and that
damages flowing from such breach are not usually susceptible to being
measured in monetary terms. Accordingly, it is acknowledged that upon
Employee's violation of any provision of this Section 2 the Company shall be
entitled to obtain from any court of competent jurisdiction immediate
injunctive relief and obtain a temporary order restraining any threatened or
further breach as well as an equitable accounting of all profits or benefits
arising out of such violation. Nothing in this Section 2 shall be deemed to
limit the Company's remedies at law or in equity for any breach by Employee
of any of the provisions of this Section 2, which may be pursued by or
available to the Company.
(f) SURVIVAL OF PROVISIONS. The obligations contained in this
Section 2 shall, to the extent provided in this Section 2, survive the
termination or expiration of Employee's employment with the Company and,
as applicable, shall be fully enforceable thereafter in accordance with
the terms of this Agreement. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 2 is
excessive in duration or scope or is unreasonable or unenforceable under
the laws of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it
enforceable to the maximum extent permitted by the law of that state.
3. TERMINATION OF PRIOR AGREEMENTS. This Agreement constitutes the entire
agreement between the parties and terminates and supersedes any and all prior
agreements and understandings (whether written or oral) between the parties
with respect to the subject matter of this Agreement. Employee acknowledges
and agrees that neither the Company nor anyone acting on its behalf has made,
and is not making, and in executing this Agreement, the Employee has not
relied upon, any representations, promises or inducements except to the
extent the same is expressly set forth in this Agreement. Employee hereby
represents and warrants that by entering into this Agreement, Employee will
not rescind or otherwise breach an employment agreement with Employee's
current employer prior to the natural expiration date of such agreement
4. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its nature and none
of the parties hereto shall, without the consent of the others, assign or
transfer this Agreement or any rights or obligations hereunder, provided
that, in the event of the merger, consolidation, transfer, or sale of all or
substantially all of the assets of the Company with or to any other
individual or entity, this Agreement shall, subject to the provisions hereof,
be binding upon and inure to the benefit of such successor and such successor
shall discharge and perform all the promises, covenants, duties, and
obligations of the Company hereunder, and all references herein to the
"Company" shall refer to such successor.
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5. WITHHOLDING. The Company shall make such deductions and withhold such
amounts from each payment and benefit made or provided to Employee hereunder,
as may be required from time to time by applicable law, governmental
regulation or order.
6. HEADING REFERENCES. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose. References to "this Agreement" or the use of
the term "hereof" shall refer to these Standard Terms and Conditions and the
Employment Agreement attached hereto, taken as a whole.
7. WAIVER; MODIFICATION. Failure to insist upon strict compliance with any of
the terms, covenants, or conditions hereof shall not be deemed a waiver of
such term, covenant, or condition, nor shall any waiver or relinquishment of,
or failure to insist upon strict compliance with, any right or power
hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times. This Agreement shall not be
modified in any respect except by a writing executed by each party hereto.
Notwithstanding anything to the contrary herein, neither the assignment of
Employee to a different Reporting Officer due to a reorganization or an
internal restructuring of the Company or its affiliated companies nor a
change in the title of the Reporting Officer shall constitute a modification
or a breach of this Agreement.
8. SEVERABILITY. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any law or
public policy, only the portions of this Agreement that violate such law or
public policy shall be stricken. All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect.
Further, any court order striking any portion of this Agreement shall modify
the stricken terms as narrowly as possible to give as much effect as possible
to the intentions of the parties under this Agreement.
9. INDEMNIFICATION. The Company shall indemnify and hold Employee harmless
for acts and omissions in Employee's capacity as an officer, director or
employee of the Company to the maximum extent permitted under applicable law;
PROVIDED, HOWEVER, that neither the Company, nor any of its subsidiaries or
affiliates shall indemnify Employee for any losses incurred by Employee as a
result of acts described in Section 1(c) of this Agreement.
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ACKNOWLEDGED AND AGREED:
Date:
USA NETWORKS, INC.
_________________________________________
By:
Title:
XXXXXX MARRIOTT
_________________________________________
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